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On the Regulatory Logics of UN Security Council Resolution 2334 (2016) on Israeli Settlements

Dr Valentina Azarova is a Postdoctoral Fellow at the Centre for Global Public Law, Koç University.

The US decision not to veto Security Council Resolution 2334 (SCR 2334 or "the Resolution"), adopted on December 23, 2016, as the last political act of the Obama administration on the Israel-Palestine conflict, may have gained more attention than the Resolution itself. As a dispositive instrument, the Resolution does little more than stir the pot on a range of existing determinations and positions on the unlawful character of Israel's settlement activities in occupied Palestinian territory. The Resolution does not provide new substantive determinations of the legality of Israeli acts, and does not have the binding authority of a Chapter VII measure in response to a threat to international peace and security. But it still has normative weight. In particular, it affirms that the situation created by the settlements is legally invalid, and that third party states and international actors are obliged to distinguish between the settlements and Israeli territory.

Complementing other analyses of the Resolution (here and here), this comment focuses on the context and telos of the Resolution to show how its normative pull arises from its close affinity with recent developments in interstate and private dealings with Israel. Specifically, I account for three regulatory logics that underpin the Resolution: (1) the systemic integrity of international law that ascribes consequences beyond international humanitarian law (IHL) to Israeli settlements, (2) the legal invalidity of unlawfully-constituted facts and the its contribution to the operability of international law, and (3) the necessity to guarantee territorial distinction as an imperative of third party enforcement.

1. Systemic Integrity Beyond IHL

The basic premise of the Resolution is elementary: Israel is an occupying power in breach of its international law obligations inter alia for (i) appropriating land for the use of settlements and (ii) altering the demographic character of the Palestinian territory through the transfer of its civilians into the occupied territory. In line with a list of previous resolutions, the Resolution affirms that settlements constitute violations of international law.

The acts underpinning Israel's establishment and maintenance of the settlements are widely understood to be violations of IHL. Israel's acts to maintain the settlements include the extension of its domestic legal jurisdiction to the occupied territory, and other acts that amount to the de facto exercise of sovereign authority in over 60 percent of the occupied West Bank. Such actions demonstrate Israel's rejection of the application of the law of occupation to the territory and its intention to maintain permanent control there (a recent example of Israel's rejection of the sovereign status of the Palestinian people in the territory is the 'Regularisation Bill'). Beyond IHL, these actions attract responsibility under other international laws.

As the Resolution affirms, Israel remains an occupying power despite its insistence on the non-applicability of the 1949 Fourth Geneva Convention to its activities in the occupied territory - territory that it claims instead to have a 'disputed' status (as per a recently uncovered cable). An occupying power is not immune to consequences under other international law if it is unlawfully using force to seek the permanent acquisition of the occupied territory. Russia's occupation of Crimea did not shield it from sanctions imposed by the US and the EU following its annexation, for violations of Ukraine's territorial integrity. Similarly, SCR 674 (1990) maintained that Iraq is liable for any loss, damage or injury resulting from "the invasion and illegal occupation of Kuwait"; and the ICJ's 1971 Advisory Opinion on South Africa's continued presence in Namibia concluded that the condition of prolonged occupation had the effect of creating an "illegal situation" by permanently eroding the right to self-determination.

Where the use of force to maintain an occupation is unlawfully intended to annex or impose permanent control over the territory, such actions also attract consequences as violations of the UN Charter's prohibition of the use of force and its protection of the self-determination of peoples. The preamble of SCR 2334 mentions the Charter's prohibition on "the inadmissibility of the acquisition of territory by force," but rather curiously, not even cursory reference is made to the Palestinian people's internationally recognized right to self-determination.

To protect the continuity of the rights of the ousted sovereign, the application of IHL to a situation of occupation presupposes and depends on the occupying state's full implementation of other international law. By foregrounding IHL, however, the Resolution regrettably downplays the urgency of redressing the consequences of de facto annexation. Israel and the international community have an obligation to end the objective illegality resulting from the use of force to acquire title to territory.

2. "No legal validity"

Although the Resolution foregrounds IHL, its central thrust is not confined to the law of occupation, since the Resolution states that Israel's settlements have "no legal validity" (para. 1). The Resolution reaffirms, in other words, that a situation predicated on violations of peremptory norms of international law (which include, as per the ICJ, violations of the "intransgressible principles of international humanitarian law"), is objectively illegal. Furthermore, the consequence of the legal invalidity of Israel's settlements is that the legislative and administrative acts that maintain them, as well as any activities and operations that are predicated on those acts, are also legally invalid.

The Resolution's reference to legal invalidity extends not only to facts related to the establishment of the settlements ex ante, but also to facts that are illegally constituted ex post. The rights and titles that are predicated on Israel's unlawful acts of abruption and de facto annexation of the settlements into Israel are themselves invalid. Financial gains accrued as a result of the wrongful enjoyment of these rights could also be invalidated.

The regulatory logic of legal invalidity derives from the principle ex injuria jus non oritur (unlawful acts cannot create law, or rights): it ensures that a wrongdoer does not accrue rights and benefits from its wrongful acts and omissions. To this end, the invalidity construct mandates that third party states and international actors adhere to a minimum obligation of abstention from recognition, aid or assistance. Facts constituted by Israel's unlawful acts have "no legal validity" and can be disputed on the international level as well as in transnational contexts by third states and actors that rely on the operation of comity and mutual recognition to enable their dealings.

In sum, the invalidity construct clarifies the illegal situation maintained by the settlements and solidifies the effects of that illegality on the legal orders of third party actors, including corporate nationals. Indeed, the legal house-keeping measures the EU has adopted to ensure the exclusion of settlements from the scope of its relations with Israel show that the obligation to invalidate certain facts can effectively place domestic authorities in the position of enforcers of international law.

3. Territorial distinction

To protect the transnational regulatory order from the risks created by unlawfully-constituted facts, all states are subject to an obligation to abstain in the common interest from recognizing as lawful such facts, as well as any rights or titles predicated on them. It is to this end that the Resolution maintains that the Security Council "will not recognise any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed upon by the parties through negotiations" (para. 3). This is why it calls on all States to adhere to their obligations of abstention by "distinguish[ing], in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967" (para. 5).

The logic of this obligation of distinction resonates with the international law-based duty of third states not to recognize as lawful, aid or assist wrongful acts, codified in the 2001 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts. The international law practice of these duties is so widely inconsistent, however, that some experts were led to conclude that as far as its international legal standing is concerned, the duty is in fact a 'soap bubble'.

Another iteration of the logic of non-recognition is observed at the level of domestic legal orders of states and international actors such as the EU. In these contexts, non-recognition is based on a deeply-engrained imperative to ensure consistency between the state's legal practice (in applying its domestic law and any legal instruments organising its interstate relations), and its positions and commitments in international law. This internalised imperative, embedded in states' administrative laws, has driven a little-known process of peer enforcement: mandating states to exclude (by refraining from giving legal effect to) facts and situations predicated on internationally unlawful acts.

In recent years, this process has taken root in the context of the EU and its member states' interstate and private dealings with Israel. The EU found itself obliged to exclude facts arising from Israel's unlawful acts in Palestinian territory from the scope of EU-Israel relations (e.g. the exclusion of Israeli entities based or operating in settlements from the EU's Horizon 2020 research fund). Since 2012, the EU's Foreign Affairs Council has affirmed the need to adopt such measures in all domains of EU-Israel relations in two Conclusions: one reaffirming the EU's commitment "to ensure continued, full and effective implementation of existing EU legislation and bilateral arrangements applicable to settlement products"; and another mandating "that - in line with international law - all agreements between the State of Israel and the EU must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967."

The exclusion of foreign territory from the territorial scope of an interstate agreement is also a corollary of the rule that agreements cannot affect the rights and obligations of a third party without the latter's consent; enshrined in Article 29 of the 1969 Vienna Convention on the Law of Treaties. In its 21 December 2016 judgment, the CJEU's Grand Chamber applied this rule to Morocco's wrongful extension of the EU-Morocco Association Agreement to the territory of Western Sahara, which Morocco has unlawfully annexed and presently treats as part of its domestic jurisdiction.

SCR 2334 does not provide a coherent account of the international law applicable to the unlawful acts underpinning Israel's settlements, or pronounce upon the effects of settlements on the legality of Israel's continued presence in the Palestinian territory. Nonetheless, the Resolution supports the legal processes that have thus far been activated by the objective illegality of Israel's settlements, and may therefore be the harbinger of more to come.

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Dr. Valentina Azarova is an international lawyer and researcher, currently a Post-Doctoral Fellow at the Centre for Global Public Law, Koç University, Istanbul. She is also a legal adviser to the Global Legal Action Network (GLAN). She has worked on the Israel-Palestine context for close to a decade: taught international law at Palestinian universities, worked and advised international and local rights groups and conducted independent research on the Palestine question in international law. Her current research looks at the participation of states in the observance and enforcement of international law, with an angle on third party obligations of abstention from recognising internationally unlawful situations.